Take-Two Fails To Get NBA2K Tattoo Copyright Lawsuit Dismissed

from the written-in-ink dept

I'll forgive you since it's been two years, but hopefully you will remember our posts about a crazy copyright lawsuit back in early 2016 between a company called Solid Oak Sketches and Take-Two Software. At issue were Take-Two's faithful depictions of several NBA stars in its NBA 2K series of games, including LeBron James and Kobe Bryant. The problem is that Solid Oak claims to have copyrights on several tattoos appearing on the skin of these players, all of which show up in the images of the game. Of course, Take-Two negotiates the rights for player likenesses with the NBA Players Association, meaning this lawsuit has the odd smell of a third party bickering over branded cattle. While Solid Oak is asking for $1.2 million in damages, Take-Two has pointed out that these sorts of statutory damages shouldn't apply as the company only registered its copyrights in 2015. This fact leads a reasonable observer to wonder why the copyrights weren't registered much earlier, were Take-Two's use so injurious.

That question is of course tangent to the most central concern of why in the world any of this isn't obvious fair use? Take-Two has First Amendment rights, after all, and its use of the eight tattoos in each iteration of the game is a hilariously small portion of each work. On top of that, the whole enterprise of the game is to faithfully depict reality with regards to each player whose likeness it has properly licensed through the NBAPA. None of this should strike anybody as a million dollars worth of copyright infringement.

"While Defendants contend that the Tattoos in NBA2K are 'observable only fleetingly'; 'displayed only briefly'; 'a small part of the graphical display' when displayed; 'sometimes obscured by other graphics'; 'not displayed prominently'; and 'sometimes displayed out of focus,' Plaintiff denies each and every one of these characterizations of the Tattoos. Instead, Plaintiff contends that, if an NBA2K player selects Messrs. James, Martin and Bledsoe in a given game or series of games, or 'employs the broad range of the video game’s features to focus, angle the camera on, or make the subject tattoos more prominent,' 'the overall observability of the subject tattoos can be fairly significant.' Thus, it is difficult to determine whether the substantial similarity is apparent to the 'average lay observer,' if what he or she is observing varies in each iteration of the game."

I own several of these games and can attest that the observability of any tattoos on any player within them are fleeting at best. The whole point of the game is to be an action-packed basketball experience from a viewpoint of most of, or the entire, basketball court. Picking out individual tattoos is rarely possible other than in manual instant replay. And, sure, some players might use that replay feature, but not regularly and not as part of regular play. This smacks of a judge that needs only to be sat in front of a television or computer screen to see the game in operation in order to have reached the proper and opposite conclusion.

But Take-Two also made a First Amendment claim, arguing, as I did above, that granting tattoo artists the rights Solid Oak is claiming would be to allow tattoo artists to trump the likeness rights of a natural person. If that doesn't strike you as plainly insane, it should. Yet the judge apparently considered all of this a question of visual accuracy and therefore denied the fair use defense.

"Because of the difficulties inherent in conducting a side-by-side comparison of the video game and the Tattoos, further evidence must be considered in connection with the fact-intensive question of the applicability of the fair use defense. As the differences between the Tattoos and Defendants’ use in the video cannot be resolved with assurance on a visual comparison of the works alone, Defendants’ fair use of the Tattoos is not so clearly established on the face of the [SAC] as to support dismissal."

To be fair to the judge, often times the court is wary of dismissing early on in the trial process over fair use defenses that aren't on very, very solid ground. That may be what is going on here. But if it is, this seems to be chiefly an issue of calibration, because Take-Two's fair use claims are very strong, and the implications of Solid Oak succeeding in its lawsuit are both not in the original interests of copyright law and plainly horrifying when it comes to public persons and their ability to trade off of their own likenesses.

Re: In this Case

I can't really fault the judge for not dismissing the case. If the parties are disputing the facts (and not just the law), that means a jury, not the judge, is supposed to decide those facts. Anything else violates the 7th Amendment's right to a jury trial.

Re: Re:

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved". Doesn't that preserve it for BOTH parties, not just the defendant? If you have case law that says otherwise, I'd be interested.

Re:

Technically if the Defendant affirms fair use the judge should use the Fair Use standard to see if any of those facts are in question.

The question for the Jury (and appeals courts) is "Is Human skin a fixed medium for distribution of copyright material". Common sense is no, humans change, skin dies, living artwork in general is not part of the copyright code, and tattoos have been around for a LONG time. Of course no one was ever dumb enough to rule on this so there is no court case to point to for the fair use claim.

The next big question is if the artist gets his way, does that mean that anyone with tattoos must cover up? This is an insane statement as well. By this definition it opens up ESPN, every reporter ever who deals with photos or video, every person who takes a selfie that includes a tattoo, and in some cases you would need 8-10 artists permission for a single photo in a tattoo magazine.

This case is basically forced to go to jury (and appeals) to prevent this from being abused in the future.

Re: Re:

Human skin being "fixed"... well, I'd probably allow it. Nothing in this world is permanent. What's the average lifespan of a tattoo, vs the average lifespan of a hard drive, cassette tape, or vinyl record? The Statute of Liberty wasn't green originally; it oxidized around 15-20 years after it was made, but I don't think you could say it wasn't "fixed".

If they made a tattoo copyright similar to an architectural copyright, it would solve the problem:

The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.

License

Somehow, the artist must be transferring the subject of the tattoo the rights to display the damn thing. Otherwise how could these sports people ever go on TV? It become part of their likeness. But hey - if everything deserves a copyright then playing sportsball in public is a "public performance" with the tattoo and someone owes the "artist" the mechanical performance fee right?

Re: License

Nah, the players are employed by the teams who license the performance to the broadcasters. It's a work for hire -- assuming copyright would apply at all.

It would be fun to see if there is an actual transfer of copyright clause in the player contracts and whether the teams or players are indemnified for use of their likeness (including tattoos) in games, promotional materials, etc.

'The rest of your industry thanks/wants to strangle you'

If insanity prevails and Solid Oak somehow manages to score a win I suspect that it won't take very long at all for a 'no tattoos' clause to be inserted in player contracts, as it will be open season for tattoo parlors to start threatening lawsuits for any 'unauthorized display' of 'their' work.

If accurately displaying a player is considered infringement of the tattoo artist's copyright then the simple fix is to not show those tattoos at all, and the easiest way to accomplish that is for there to be no tattoo to show.

implied warranty: merchantability/fitness for particular purpose

from [[Implied warranty]] on Wikipedia: "In common law jurisdictions, an implied warranty is a contract law term for certain assurances that are presumed to be made in the sale of products...irrespective of whether the seller has expressly promised them orally or in writing. They include an implied warranty of fitness for a particular purpose, an implied warranty of merchantability for products, implied warranty of workmanlike quality for services, and an implied warranty of habitability for a home."

The purpose of a tattoo is to be displayed. If it cannot displayed and must be covered up for some reason (such as copyright) which is entirely the fault of the vendor, is that implied warranty not being violated?